EPA dismisses misconduct concerns by Great Bay coalition

Tuesday

Oct 16, 2012 at 3:15 AMOct 16, 2012 at 5:24 AM

By Michelle Kingstonmkingston@fosters.com

DOVER — The Environmental Protection Agency’s Office of Water has dismissed the EPA Region 1 science misconduct concerns presented earlier this year by the Great Bay Municipal Coalition.A letter was sent to John Hall, a Washington, D.C. Environmental Attorney hired by the coalition to prove that there is evidence of scientific misconduct in part of Region 1, which includes the Great Bay Estuary. The coalition was hoping to have an additional peer review before making a final decision to file a lawsuit for violation of mandatory duties under the Clean Water Act.“Your letter makes a number of very serious allegations concerning the EPA Region 1 office, including that ‘serious regulatory violations, bias, and scientific misconduct underlie the Region’s actions … ’ And that the Region has ‘intentionally, knowingly, or recklessly committed violations of the Federal Policy on Research Misconduct and the EPA Scientific Integrity Policy in every step of these proceedings …’” Nancy Stoner, EPA Office of Water’s Acting Assistant Administrator, wrote. “Because of the seriousness of these allegations, the EPA’s Office of Water has initiated a careful review of the issues raised in your letter.”Stoner said she contacted the EPA’s interim science integrity official who said Hall’s letter and attachments “do not provide a basis to conclude that the Region’s actions in any way constituted scientific misconduct as defined by the EPA’s Scientific Integrity Policy.”The EPA administered a National Pollution Discharge Elimination Permit for Dover’s treatment facility requiring additional upgrades to restrict the amount of nitrogen being discharged into the estuary. To meet this goal, the Great Bay Municipalities, which include Exeter, Newmarket, Rochester, Portsmouth and Dover, would have to make millions of dollars in upgrades to their facilities.“We’re not prepared to make costly capital improvements for our waste water system that are unjustified,” Portsmouth Mayor Eric Spear said. “This is something that is going to be so expensive, you really only want to do it if you are really sure.”City Manager Michael Joyal agrees with Spear.“It’s just like Spear said, ‘measure twice, cut once,’” Joyal said. “We want to make sure that the science is right.”The EPA has proposed to reduce the city’s nitrogen discharge, which currently operates between 15 milligrams to 20 milligrams per liter, to a limit of 3 milligrams per liter. “It’s not whether it is 3 or 5 or 8,” said Spear. “We’ve seen the data. We don’t believe the conclusions they’re drawing are sound, based on the data that we have.”Spear said this is not about delaying moving forward to update the estuary.“But, based on the data we have so far, we aren’t convinced,” Spear said.Joyal said it isn’t about delaying the updates, but making sure this is based on sound science.“When New Hampshire Department of Environmental Services came out with their criteria with nitrogen, they put it in the form of a draft document. The Coalition community, all along, has said they have concerns about the science and the calculations used by NHDES,” Joyal said.During a press conference in September, Dover’s Environmental Consultant, Dean Peschel, said new information suggesting that prior increases in nitrogen levels and decreases in eelgrass may just be a reflection of natural changes. He said these levels are what caused the New Hampshire Department of Environmental Services and the EPA some concern.“The coalition believes the prompt analysis of this data will show that stringent nitrogen reduction at waste water treatment plants is not needed to allow for eelgrass restoration,” Peschel said at the press conference.Peschel showed three graphs showing eelgrass coverage of the Great Bay Estuary and nitrogen sampling. “From 2009 to 2011, the average was essentially the same as it was back in the early 1990s,” Peschel said at the press conference. “It appears that the system is correcting itself.”The letter from Stoner, in response to the coalition’s request, was dated September 27, 2012. Stoner wrote in response to the May 4, 2012 letter sent by Hall requesting further review of the Great Bay Estuary issues be transferred to an independent panel of experts for their evaluation of the relevant scientific information in a peer review instead of being taken care of in the EPA’s Region 1 office. Spear said their concern is that the scope of the review was too limited.“We want to have an independent assessment to help resolve the many complex issues,” he said. “Our motivation is to be doubly sure that the costly improvements that we make have the desired outcome.”Stoner wrote that the EPA has not made a final decision for an additional peer review, but she wanted to reiterate previous EPA peer review activities to Hall.“The purpose of the peer review was to support the state by providing advice from national experts on how to improve the technical and scientific soundness of the document as a basis for future development of numeric nutrient water quality criteria,” Stoner wrote. “The peer review was not intended to resolve the many complex issues concerning the development of nutrient criteria and the implementation of nutrient controls for the Great Bay.”Joyal wrote in an email that the EPA is indicating in the letter that the prior peer review was “fine for the purpose it was intended to fulfill.” “…There was not an opportunity to present relevant questions to the EPA’s original peer review panel concerning the lack of cause and effect between nitrogen levels and the designated impairments of Great Bay’s water quality,” Joyal wrote.Before a December 2009 request of the New Hampshire Department of Environmental Services, Stoner wrote that the EPA conducted a peer review of the State’s final draft criteria document through EPA’s Nutrient Scientific Technical Exchange Partnership and Support program. “N-STEPS is an external independent peer review process administered through an EPA-funded contract,” Stoner wrote. “The two scientists chosen for the peer review have national expertise in the field of marine eutrophication and had no involvement in the development of the NH DES criteria. Neither Region 1 nor the Office of Water had a role in selecting the reviewers.”Stoner wrote that the EPA’s opinion is that the reviewers and the charge questions to them were consistent with the Office of Management and Budget’s 2004 guidance for peer review and the EPA’s Peer Review Handbook.“The purpose of the peer review was to support the state by providing advice from national experts on how to improve the technical and scientific soundness of the document as a basis for future development of numeric nutrient water quality criteria,” she wrote. “The peer review was not intended to resolve the many complex issues concerning the development of nutrient criteria and the implementation of nutrient controls for the Great Bay.”Stoner wrote that it is not unusual for parties to disagree with the EPA over Agency actions that affect them “especially when those actions rely on interpretations of legal authority and analysis of scientific data.”“I recognize that you are concerned that the EPA-proposed limits may result in the need for action by your clients, as well as other stakeholders, to reduce nutrient loadings to the Great Bay Estuary,” Stoner wrote.“Nevertheless, based on careful consideration of your letter and the documents you provided, the EPA Office of Water has not seen evidence that Region 1 has engaged in scientific misconduct, as you suggest,” wrote Stoner.

Joyal wrote in an email to city officials that the Great Bay Community Coalition met with the EPA in Washington, D.C. earlier this summer and requested a follow-up peer review.E. Tupper Kinder, Esq. of Nelson, Kinder, Mosseau & Saturley, PC, and attorney representing the City of Portsmouth said the coalition wanted a second peer review to hopefully settle the deal without having to file the lawsuit. He said it would have shown that there either was scientific misconduct or at the very least, scientific mistakes in NHDES development of the new water criteria.“This would make it unnecessary for us to sue them because they would have to reconsider, he said. “This makes it more likely that that suit will actually be filed.”On Friday, October 12, Kinder said there was a court hearing on the state case where the coalition sued NHDES. The coalition and NHDES asked the court to decide the case based on merits.“I would expect the state case to have an initial decision from the Superior Court within the next few weeks,” Kinder said.Joyal wrote that he was informed by a NHDES official that the issuance of Dover’s new NHDES permit for the waste water treatment plant is moving forward.“…We have been seeking an opportunity to meet with (EPA Region 1) to learn more specifics and discuss expected implementation measures,” Joyal wrote. “As has been the case with other coalition communities, we expect there will be an opportunity to do so with sufficient time for follow-up meetings prior to issuance of any final permit.”Stoner said the Office of Water will continue to review Hall’s submissions and intends to provide a comprehensive response at a later date.“I hope that we can work through this,” Mayor Dean Trefethen said. “It’s all not surprising, but it is disappointing.”